Nghị định 35/2005/ND-CP

DECREE

ON DISCIPLINING OFFICIALS, PUBLIC EMPLOYEES

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Ordinance on Officials, Public Employees dated February 26, 1998; the Ordinance Amending, supplementing a number of Articles of the Ordinance on Officials, Public Employees dated April 28, 2000 and the Ordinance Amending, supplementing a number of Articles of the Ordinance on Officials, Public Employees dated April 29, 2003;

At the proposal of Home Affairs,

DECREES:

Chapter 1:

GENERAL PROVISIONS

Article 1. Scope and objects of governing

1. This Decree provides for the discipline of officials and public employees who violate the provisions of law.

2. Subject to the regulations of this Decree, including officials and public employees defined in points b, c, d, đ and e, clause 1, Article 1 of the Ordinance amending and supplementing some Articles of the Ordinance on Officials and Public Employees dated April 29, 2003 (hereinafter referred to as the Ordinance on Officials and public employees in 2003).

3. If the following cases violate the law, they shall also discipline under the provisions of this Decree, including: officials and public employees who were mobilized to work in the economic organizations, social organizations, the professional- social organizations; officials and public employees who are on leave to wait for procedures of pension; officers and public employees who after being mobilized to work for the other agencies, organizations and units, are discovered violations of law

Article 2. In cases of being disciplined

1. Violations of the obligations implementation of officials and public employees defined in Article 6, 7 and 8 of the Ordinance on Officials and Public Employees in 2003 while being on duty, public service.

2. Committing violations that officials and public employees are banned from doing as provided for in Article 15, 16, 17, 19 and 20 of the Ordinance on Officials and Public Employees in 2003.

3. Violations of the law that were declared guilty by courts or concluded in writing on violations of law by competent agencies.

Article 3. The cases that have not considered yet the discipline for officials and public employees

1. Being at the time of holidays, leave by mode, leave by the individual work permitted by the heads of the agency or organization, unit.

2. Being treated in hospitals.

3. Being temporarily detained, in custody pending the conclusion of investigation, verification, and conclusions of law violations by the competent authority.

4. Female officials, public employees who are on maternity leave.

Article 4. The cases of not applying to the disciplinary forms provided for in this Decree

1. Violate law regulations in case of being lost capacity of civil acts according to the conclusions of the competent health authority.

2. Must implement the decisions of the superiors in accordance with provisions in Article 8 of the Ordinance on Officials and Public Employees.

3. Violation of discipline in a force majeure situation while being on duty, public service and is certified by competent authorities.

Article 5. The principles of consideration for disciplining officials, public employees

1. Objectiveness, fairness, strictness and the proper time limit.

2. When disciplining officials and public employees, it must set up a Disciplinary Council, except for officers, public employees who were offended against law and sentenced imprisonment by the court without the suspended sentence.

3. Disciplinary decision must be signed by the competent person as prescribed in this Decree.

4. Each violation is handled only a form of discipline. If officials and public employees who have been conducted many violations, shall be handled the discipline on each violation and take the discipline form of a higher level.

5. To ban all acts of infringing upon the body, honor and dignity of officials and public employees in the review process of discipline; to ban the application of the fine measures instead of a form of discipline.

6. Not to apply the disciplinary form of dismissal for female officials and public employees who are pregnant and officials and public employees who are raising children under 12 months old.

Article 6. Complaints and lawsuits

1. Where officials, public employees do not agree with the decision to discipline, they may lodge complaints to the competent agencies, organizations, units under the law regulations.

2. Officers and public employees holding positions from director general or less who are forced to resign and after making complaints that they have been forced to resign, they may initiate administrative lawsuits at courts according to law regulations.

3. The agencies, organizations, units receiving complaints of officials and public employees have to take responsibility for replying to concerned people according to their competence and the time limit as prescribed by law.

Article 7. Resolving of complaints conclusions

1. The decision to discipline for officials and public employees who have been concluded by the competent agencies, organizations, units or have been judged as victim by the Court, no later than 30 days from the date of conclusion or Court's judgment takes effect, the heads of agencies, organizations or units where officials and public employees work take the responsibility to publicize the conclusion or above judgment to all officials and public employees and must take responsibility for compensating the legitimate interests of officials and public employees as prescribed by law.

2. If agencies or organizations that are competent to settle complaints and denunciations of conclusion on the discipline for officials and public employees conduct improper provisions on the contents, forms, handling process, the person who is competent to sign disciplinary decision must issue the decision to revoke the decision to discipline and direct the heads of agencies, organizations, units of managing officials and public employees to reorganize the discipline consideration for officials and public employees in accordance with provisions.

Chapter 2:

DISCIPLINE

ITEM 1: FORMS AND DISCIPLINE DESCRIPTION

Article 8. Forms of discipline

Officials and public employees who violate the provisions of law shall be subject to one of the following discipline forms:

1. Reprimand;

2. Warning;

3. Wage reduction;

4. Scale reduction;

5. Demotion;

6. Dismissal.

Article 9. The description of discipline

1. The description of discipline is the time required to conduct review of disciplining officials and public employees and calculated from the time when the agencies, organizations, units who are competent to consider, handle the discipline determine officials and public employees committing violations of discipline until the meeting time of the Disciplinary Council.

2. The description of discipline is stipulated as three months.

3. If the case has complicated circumstances, it takes time for inspection, examination to verify further, the description of discipline can be prolonged but with a maximum period of not exceeding six months. Exceeding the prescription of discipline, the consideration for disciplining officials and public employees shall be terminated.

4. Where officials and public employees related to the case being investigated, prosecuted, judged by the legal proceedings agency, the prescription for disciplinary handling review from the Court's judgment date on the acts of violation of officials and public employees takes legal effect.

5. Where required to review the discipline of officials, public employees defined in clause 2, Article 7 of this Decree, the prescription for disciplinary handling review is calculated from the date of receiving the conclusions of the agencies and organizations that are competent to settle complaints.

6. The period of time that has not temporarily considered yet discipline for the cases provided for in Article 3 of this Decree is not included in the prescription for disciplinary handling review. The prescription for disciplinary handling review for the cases stipulated in Article 3 of this Decree is calculated from the date that officers, public employees go back to normal work.

7. The persons who are assigned disciplinary handling authority for officers, public employees must take responsibility for not having disciplined yet officers, public employees committing disciplinary violations within the defined prescription.

Article 10. Temporary suspension of work for officers, public employees committing disciplinary violations

1. While being considered the discipline, officials and public employees may be issued decision to suspend temporarily the work by agencies, organizations, units that are competent to manage if it deems that the continuing to work of such officials and public employees may cause difficulties for the verification or continue to commit the violations.

2. The time limit for temporary suspension of work does not exceed 15 days. In the special cases due to many complex circumstances that need to be clarified may be prolonged but not exceeding more than three months.

3. Expiry of temporary suspension time limit of work, if officials and public employees have not been disciplined, the agencies, organizations, units that are competent to manage must arrange officials and public employees to work at the former position or arrange the suitable jobs.

4. During temporary suspension time of work, officials and public employees are enjoyed 50% of salary and allowances (if any). After the consideration of agencies, organizations and units ends, if the officials and public employees are not disciplined, they shall be received remaining retroactive salaries and allowances (if any) in the period of temporary suspension of work, the period of temporary suspension of work shall be calculated to the time to increase wage. Where officials, public employees who were disciplined, they shall not be received the remaining retroactive salaries and allowances (if any), the period of temporary suspension of work until having a disciplinary decision shall not be counted as the time to increase wage.

Item 2: DISCIPLINARY COUNCIL

Article 11. Disciplinary Council

1. Disciplinary Council is established by the heads of agencies, organizations, units that are competent for the establishment and implement consulting tasks for the competent person in the application of appropriate disciplinary form for violations of officials, public employees. Disciplinary Council works under the provisions of this Decree and dissolves by itself after completing its task.

2. The number of members participating in the Disciplinary Council is five people, including the following specific components:

a) Chairman of the Council or deputy heads of agencies, organizations, units is the head;

b) A Council member is the representative of union trade executive committee at the same level of the agency, organization, and unit;

c) A Council member is the representative of officials and public employees of the department with person who violates discipline (assigned by collective officials and public employees of such department);

d) A Council member is the person who directly manages administration and professional skill of the one who violates discipline;

đ) A Council member is the person who is in charge of personnel organization of agencies, organizations, and units with violating person.

3. Where the heads or deputy heads of the agencies, organizations, and units violate discipline, the heads of agencies, organizations, units of direct higher level management decide to establish the Disciplinary Council to consider handling. In this case, the composition of the Disciplinary Council includes:

a) Chairman of the Council or deputy heads of agencies, organizations, units of direct higher level is the head;

b) A Council member is the representative of party committee of direct higher level of party committees of the agencies, organizations and units;

c) A Council member is the representative of union trade executive committee of the agencies, organizations, and units with officials, public employees who violate discipline.

4. Upon establishment of the Disciplinary Council, not to appoint a person with family relationship as father, mother, wife, husband, child, natural brother, sister of officials, public employees who violate discipline involved in as member of the Disciplinary Council.

Article 12. The working principle of the Disciplinary Council

1. Objectiveness, publication and democracy and in accordance with current regulations.

2. Disciplinary Council meets only when all Council members are present.

3. To propose the application of disciplinary forms which are made through voting by secret ballot and by the majority rule.

4. When the Disciplinary Council meets, it must have minutes and have passed by the Council before the Council Chairman signs it.

Article 13. The components who are invited to attend meetings of Disciplinary Council

1. Disciplinary Council may invite representatives of political organizations, social and political organizations with officials, public employees violate to attend the meeting.

2. When the components specified in this clause 1 attending the Disciplinary Council is engaged to express their opinions and suggest the discipline level but may not be voted on disciplinary form.

Article 14. Disciplinary Council Secretary

1. Disciplinary Council Secretary is official, public employee of the department of personnel organization of the agency, organization, unit indicated by the Council’s chairman.

2. Secretary of the Disciplinary Council is responsible for preparing documents, records relating to discipline and take responsibility for recording minutes of meetings of the Disciplinary Council.

ITEM 3: PROCESS DISCIPLINE HANDLING REVIEW

Article 15. Preparation for the meeting of the Disciplinary Council

1. Officials and public employees who violate discipline must make self-criticism and self-receive disciplinary form.

2. The heads of agencies, organizations, units using officials and public employees are responsible for organizing the meeting for the disciplinary offender to make self-criticism before collective agencies, organizations, and units. Minutes of the self-criticism meeting have the proposal of disciplinary form of the agencies, organizations, and units.

3. Records to submit to the Disciplinary Council include: a written self-criticism of the disciplinary violator; minute of meeting for self-criticism of disciplinary violator of agencies, organizations, and units; brief resume of the disciplinary violator, documents, records relating to the discipline.

4. Officials and public employees who violate disciplinary shall be sent notice of convention by the Disciplinary Council 07 days before the Disciplinary Council meets.

If the violating officials and public employees are absent, they must have the legitimate reasons. If the notice of convention were sent 02 times, but the concerned people are still absent or where the disciplinary offender refused to write a written self-criticism as required by the management agency of officials, public employees, the Disciplinary Council still hold the meeting to consider and recommend the disciplinary form.

Article 16. The order of the Disciplinary Council’s meeting

1. Chairman of the Council states the reason, introduces the participants.

2. Council Secretary presents brief resumes, records, and concerned documents.

3. The disciplinary violator reads the written self-criticism. Where he/she is absent, the Council Secretary helps to read the written self-criticism.

4. Council Secretary reads the minute of the meeting to criticize the violator of collective agency, organization, or unit.

5. The Council’s members and delegates attending the meeting express their opinions.

6. Officials and public employees who violate discipline express their opinions on disciplinary form before the Disciplinary Council ballots.

7. Disciplinary Council ballots for proposing application of form of discipline.

8. Proposal of disciplinary form of the Council informed at the meeting.

Article 17. Time limit and responsibility to make decision of discipline

1. Within 05 working days from the date of ending the meeting, the Disciplinary Council must send written dispatch (together with concerned minutes, records, and documents) to the heads of agencies, organizations, units that are competent to manage officials and public employees.

2. Within 15 working days from the date of receiving the written dispatch of the Disciplinary Council (together with records and documents), the heads of competent agencies, organizations, units make decisions of discipline in writing.

3. Where the officials and public employees who violate discipline under the decision authority of the higher level, the time limit for making the disciplinary decision is 30 days.

4. Where the recommendations of the Disciplinary Council (or opinions of agencies, organizations and recommending units) are different from the opinions of heads of the competent agencies, organizations, units but after consultations, discussion are inconsistent, the head of agencies, organizations and units decide by themselves and take responsibility for their decisions.

Article 18. Management of disciplinary records

1. The records and documents relating to the discipline and decision to execute discipline must be kept in the records of officials, public employees.

2. Disciplinary forms must be filled in the resumes of officials, public employees.

Article 19. Special cases

1. Where officials and public employees who violate discipline are the heads or deputy heads of the agencies, organizations, units, then the organization and presiding of the self-criticism meeting shall be made by leaders of direct superior. The participants of the meeting are officials and public employees holding leadership positions in agencies, organizations, and units. The determination of the participants shall be decided by direct superior.

2. Where the officials and public employees who violate the discipline during the seconded time, the consideration, handling of discipline is made by the Disciplinary Council of the agencies, organizations, units that were seconded. Then, send all records and disciplinary decisions to the agencies, organizations, and units managing such officials and public employees in order to keep on records of officials, public employees.

3. When detecting officials and public employees who are on leave pending the pension procedures committing disciplinary violations while being on duty before the retirement, the agencies, organizations and units that are competent to manage officials, public employees still conduct to review the discipline under the provisions of this Decree.

4. If after officials and public employees transferred their jobs to other agencies, organizations and, units, their disciplinary violations are detected, the former agencies and organizations, units still conduct the discipline handling review under provisions of this Decree. Then send all records and disciplinary decisions to the agencies, organizations, and units managing such officials and public employees in order to keep on records of officials, public employees for supervision, management.

ITEM 4: APPLICATION OF FORMS OF DISCIPLINE

Article 20. Reprimand

Applying to the officials, public employees who commit acts of disciplinary violations for the first time at the mild level.

Article 21. Form of warning

Applying to officials, public employees who have been reprimanded, but commit again or violation at mild level but with frequent nature or although it is the first violation, but with the relatively serious nature; the violation at the first time but related to quality of officials and public employees, thus affecting the credibility of agencies, organizations and units; violation of the obligations of officials and public employees regarding the responsibility of training, study, discipline and behavior of officials and public employees; forging of documents, resumes and illegal use of diplomas and certificates but not yet causing consequences; violation at mild level of provisions that officials and public employees are not allowed to do provided in the Ordinance on Officials and Public Employees.

Article 22. Form of wage reduction

Applying to officials, public employees who violate the obligations of officials and public employees who have been disciplined as warning, but commit again; related to public service ethics and violations of discipline prescribed by agencies, organizations, units; forging of documents, resumes and illegal use of diplomas and certificates to be wage increase or scale increase; serious discipline violations and law while performing their duties, public service; relatively serious violations of provisions that officials and public employees are not allowed to do provided in the Ordinance on Officials and Public Employees.

Article 23. Form of scale decrease

Applying to officials, public employees committing acts of violation of discipline and law while performing their duties, public service that are deemed not sufficient moral and professional standards of the scale that are being undertaken; serious violations of provisions that officials and public employees are not allowed to do provided in the Ordinance on Officials and Public Employees.

Article 24. Form of demotion

Applying to officials and public employees holding positions with a serious violation of discipline and law that cannot continue to hold assigned positions.

Article 25. Form of dismissal

1. Applying to officials, public employees committing crime were imprisoned by the court.

2. Disciplinary Council may make recommendations to the competent authority to decide disciplinary form of dismissal for the following cases:

a) Officials, public employees who are being in the time of implementation of one of the disciplinary forms of scale reduction and demotion, but commit again or continue to commit violations of discipline;

b) Although officials, public employees commit violations for the first time but the nature and level of the violations is seriousness, no longer worthy to stand in the contingent of officials, public employees;

c) Officials, public employees use unlawful diplomas and certificates to be employed in the agencies, organizations, units of state;

d) Officials, public employees of being addicted drug;

e) Officials, public employees who arbitrarily leave their jobs and were sent notice three times by agencies, organizations, units, but not coming.

ITEM 5: TERMINATION OF EFFECT OF DISCIPLINARY DECISIONS AND REGULATIONS RELATING TO OFFICIALS, PUBLIC EMPLOYEES BEING DISCIPLINED

Article 26. Termination of effect of the disciplinary decisions

1. After 12 months from the date of the disciplinary decision, if officials, public employees do not commit again or have no violations serious enough to be disciplined shall be automatically terminated the disciplinary decision.

2. When the competent authority issues disciplinary decision, it must have the terms state the time that officials, public employees were disciplined, calculated from the date of issuing the disciplinary decision to the time of full 12 months as prescribed.

Article 27. The provisions relating to officials and public employees being disciplined (except for the cases of dismissal)

1. Officials and public employees who are disciplined by the form of reprimand, warning, demotion shall be extended for another year wage increase.

2. Officials and public employees who are disciplined by one of the forms of from reprimand to demotion shall not be increased scale or appointed to the higher positions within at least one year from the time of the disciplinary decision.

3. Officials and public employees who were disciplined by one of the forms of reprimand, warning, wage reduction, the scale reduction, depending on the nature and seriousness of violations can be arranged in the former location or move to other jobs.
4. Officials and public leaders who are disciplined in the form of demotion are arranged to work at other jobs.

5. Officials and public employees that are currently being considered for discipline do not conduct the transfer, secondment, appointment, settlement of retirement or settlement of resignation mode.

6. After termination of validity of the disciplinary decision, the arrangement of salaries and appointment of scale and appointment of leadership positions for officials and public employees who are disciplined in the form of wage reduction, scale reduction and demotion, dismissal shall be considered to decide by the agencies, organizations and units or propose the competent authorities for consideration and decision in accordance with the law regulations.

Article 28. Provisions relating to officials and public employees being disciplined as dismissal

1. Officials and public employees who are subject to the discipline of dismissal are not enjoyed the regime of termination under the provisions of the state but confirmed the working time by the social insurance office that paid the social insurance to implement the regime of social insurance as stipulated by law.

2. Records of officials, public employees who are disciplined as dismissal shall be kept by the competent agency of managing officials and public employees. Where after the officials, public employees are disciplined as dismissal need their records, resumes, they shall be granted the copies by the competent agency of managing officials and public employees (with certification) .

3. If officers and public employees are disciplined in the form of discipline of dismissal, after 12 months (calculated from the date of the disciplinary decision) they can be re-registered entrants into the works as officials and public employees in the agencies, organizations and the units of the state, but not be registered as candidates for positions related to the tasks and public duties that they have been assumed previously.

Article 29. Regulations for officials and public employees being disciplined as victims of an injustice

Where officials, public employees who were disciplined or prosecuted for criminal liability but concluded as victims of an injustice by the competent authorities, in addition to the restoration of honor and compensation for damages as prescribed by law, they are also arranged the appropriate jobs, enjoyed the salaries corresponding to the salaries before being disciplined; time to execute the disciplinary decision that was later concluded that injustice shall be included in the time for wage increase.

Chapter 3:

COMPETENCE TO DISCIPLINE

Item 1: FOR OFFICERS, PUBLIC EMPLOYEES IN STATE ADMINISTRATIVE AGENCIES

Article 30. In case of violators being officials, public leaders

1. The Prime Minister considers and decides the discipline the officials, public leaders holding positions of leadership appointed by the Prime Minister.

2. Ministers, heads of ministerial-level agencies, governmental agencies review and decide the discipline for officials and public leaders holding positions of leadership appointed by ministers, heads of ministerial-level agencies, governmental agencies.

3. Presidents of the People's Committees of provinces and cities directly under the Central Government shall consider and decide discipline for officials and public leaders holding positions appointed by the Presidents of the People's Committees of provinces and cities under Central Government.

4. Apart from the cases of officials and public leaders defined in clause 1, 2 and 3 of this Article, based on decentralization of management, officials, and public employees holding the positions appointed by a certain level, when persons of such level violate, such level head shall consider and make the disciplinary decisions.

5. If officials and public employees holding the leadership positions disciplined in the form of wage reduction, lower scale of salary, forced to resign that scale increase, wage increase, recruitment decided by the direct superior, the heads of agencies and organizations review and recommend in writing to the competent authority for deciding discipline.

Article 31. Where violators being officials, public employees not holding leadership positions

1. For the ministries, ministerial-level agencies, Governmental agencies (hereinafter referred to as Ministries):

a) Officials and public employees of the Ministries who were disciplined, the ministers, heads of ministerial-level agencies and Governmental agencies shall consider and make the disciplinary decisions.

b) Officers and public employees of agencies, organizations, and units under the Ministries violate discipline; the heads of agencies, organizations, units directly under the Ministries shall make the decision to discipline under the authority decentralized. Where officials and public employees in the rank of principle specialist or higher who were disciplined in the form of wage reduction, lower scale of salary and forced to resign, then after the Disciplinary Council has its recommendations on disciplinary form, based to decentralized authority, the head of the agency, organization, unit makes decision or proposes in writing to the competent authority for making decision on discipline (through personnel organization agencies).

2. For the People's Committees of provinces and cities under central authority (hereinafter referred to as provinces):

a) Officers and public employees of Departments, Boards and Branches of the provincial People's Committees and agencies of the People's Committees of urban districts, rural districts, towns and provincial cities who were disciplined, the heads of the agencies shall make decision to discipline under their decentralized authorities.

b) Officers and public employees of organizations directly under Departments, Boards and Branches of the provincial People's Committees and organizations directly under the People's Committees of urban districts, rural districts, towns and provincial cities who were disciplined, the heads of the organizations shall make decision to discipline under their decentralized authorities.

c) In case of officials and public employees in the ranks of specialist and principle specialist or more who are disciplined in the form of wage reduction, lower scale of salary and forced to resign then after the Disciplinary Council has its recommendations on disciplinary form, based to decentralized authority, the head of the agency, organization, unit makes decision or proposes in writing to the competent authority for making decision on discipline (through personnel organization agencies.

Item 2: FOR THE ADMINISTRATIVE UNITS OF THE STATE

Article 32. Where violators being officials, public leaders

1. The Prime Minister considers and makes decision to discipline for officials, public leaders holding positions appointed by the Prime Minister.

2. Officials and public employees who are the heads or deputy heads of administrative units appointed, recruited by a certain level, if committing discipline violations shall be reviewed and made disciplinary decisions by such level.

3. If officials and public employees who hold leadership positions who were disciplined by the disciplinary form of wage reduction, lower scale of salary, forced to resign that that scale increase, wage increase, recruitment decided by the direct superior, the heads of agencies and organizations, units review and recommend in writing to the competent authority for deciding discipline.

Article 33. Where violations being officials, public leaders not holding leadership positions

Based on the decentralization of management of officials and public employees in the administrative units of the state, the level that are competent to (or assigned) recruit, sign working contract, increase wage, appoint scale, such the level shall review and make the disciplinary decision or propose a written request to the competent authority for making disciplinary decision.

Chapter 4:

IMPLEMENTATION PROVISIONS

Article 34. Effect

1. This Decree takes effect 15 days after its publication.

2. This Decree replaces Chapter I, Chapter II of Decree No.97/1998/ND-CP of November 17, 1998 of the Government on disciplining and material responsibility for public employees.

Article 35. Responsibility for guiding the implementation

1. Minister of Home Affairs is responsible for checking and guiding the implementation of this Decree.

2. Based on the provisions on discipline in this Decree (except for provisions on disciplinary form) and the regulations on the discipline for Commune-level public employees in the Decree No. 114/2003/ND-CP dated October 10, 2003 of the Government on officials and public employees of communes, wards and townships, the Minister of Home Affairs is responsible for guiding the implementation of disciplinary regime for Commune-level public employees.

3. The competent bodies of political organizations, political - social organizations based on the provisions of this Decree guiding the application for officials and public employees specified in point b, clause 1, Article 1 of the Ordinance amending supplementing some Articles of the Ordinance on Officials and Public Employees working in agencies and units of political organizations, political - social organizations; officials and public employees defined in point d clause 1 of Article 1 of the Ordinance amending supplementing some Articles of the Ordinance on Officials and Public Employees working in the administrative units of political organizations, political - social organizations.

Article 36. Responsibility for implementation

The ministers, heads of ministerial-level agencies, heads of governmental agencies, Presidents of the People’s Committees of provinces and centrally-run cities shall implement this Decree.